0120110913
03-21-2012
Denise A. Trepagnier, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Denise A. Trepagnier,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120110913
Agency No. 4G-700-0059-10
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the November 5, 2010 final Agency decision (FAD) concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq. Our review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Customer Services Supervisor at the Agency’s Central Carrier
Station in New Orleans, Louisiana. On May 17, 2010, Complainant filed
an EEO complaint alleging that the Agency discriminated against her
on the bases of race (African-American), sex (female), and age (51)
when she was not selected for three Customer Services Manager positions
(Carrollton, Lake Forest and Elmwood Stations).
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided
in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant
In the FAD, the Agency initially determined that Complainant had not
established a prima facie case of discrimination on the alleged bases.
Nonetheless, the Agency assumed arguendo that Complainant had established
a prima facie case of discrimination and found that it had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to the Carrollton Station position, the selecting official (SO)
stated that while Complainant’s performance there as Acting Manager
was satisfactory, Complainant had struggled with holding her management
team accountable. SO affirmed that the selectee (Selectee 1) was the
best qualified candidate for the position because her performance had
been stellar while serving as Acting Manager of the Algier’s Station
and because of her experience as Postmaster and Acting Manager at other
stations. Further, Selectee 1 excelled in managing all functions at
the stations where she worked and in holding employees accountable.
Regarding the Lake Forest position, SO asserted that that she did not
have confidence that Complainant could effectively manage at the Lake
Forest Station, which had the most aggressive workforce in New Orleans.
SO stated that she selected the selectee (Selectee 2) because she had
previous success as an Acting Manager at the Lake Forest Station in
holding employees accountable, gaining respect and results and turned
the station around in a short period time. Finally, as to the Elmwood
Station, SO maintained that the selectee (Selectee 3) was selected for
this position because he had over 30 years of experience and had held
many previous positions including being the Station Manager at Elmwood
and Postmaster at Slidell.
In attempting to establish that the Agency’s reasons were pretextual,
Complainant alleged that she was better qualified than the selectees
because she had 30 years of service and spent the previous year as
Acting Manager of the Carrollton Station. The Agency determined that
years of service was not a determinative factor for selection; rather,
specific experience as an Acting Manager in higher-level positions
and the ability to hold employees accountable were key factors in the
selection decision. The Agency found that there was no evidence that
Complainant had demonstrably superior experience to the selectees.
Thus, the Agency concluded that there was no evidence to show that
management’s explanations for its selections were pretext for unlawful
discrimination. As a result, the Agency found that Complainant had not
been discriminated against as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she held her subordinates accountable
while Acting Manager and submitted evidence of discipline she purportedly
issued. Complainant states that she never received any feedback that
her performance was deficient in this regard. Complainant argues that
she has done everything in her power to place herself in a position for
upward mobility and the Agency continues to promote the same employees.
Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248. 256 (1981).
In the instant case, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. The record reveals that
SO and the Customer Services Manager (M1) conducted interviews of all
of the applicants for the positions at issue and SO ultimately made
the selection decisions. As to the Carrollton position, SO affirmed
that Selectee 1 was the best qualified for the position based on her
outstanding prior performance as a Postmaster, Manager, and Acting Manager
at various stations. ROI, at 89. SO found Complainant’s performance
as Acting Manager at Carrollton satisfactory, but she struggled with
holding her management team accountable. Id. M1 noted that Selectee 1
had been a Level 22 Manager at the Algiers Station, the largest station
in New Orleans and demonstrated that she could handle the position.
Id. at 83-84.
Regarding the Lake Forest Station position, SO maintained that Selectee
2 was selected because she had instant success in turning around
this difficult station in a short time as Acting Manager. ROI, at 89.
Selectee 2 held employees accountable and gained respect and results. Id.
SO stated that Complainant would not have been a good fit for this office
and SO did not have confidence that she could effectively manage there
based on her performance at Carrollton. Id. M1 added that Selectee
2 turned the Lake Forest Station into one of the best stations in New
Orleans, created a better work environment for the employees, and gave
the customers better service. Id. at 83. M1 stated that Selectee 2 was
given an opportunity to show what she could do and really performed. Id.
Finally, as to the Elmwood Station position, SO confirmed that Selectee
3 had over 30 years of experience and had previously served in numerous
managerial positions, including Station Manager at Elmwood. Id. at 89.
M1 affirmed that Selectee 3 was selected based on his extensive knowledge
and experience and had demonstrated that he could do the job in his
previous stint at Elmwood. Id. at 84.
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency's
reasons were not the real reasons and that the Agency acted on the basis
of discriminatory animus. One way Complainant can establish pretext is
by showing that her qualifications are “plainly superior” to those
of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant has failed to carry this burden. While Complainant contends
that she had more experience than the selectees, the Commission notes
that years of service does not necessarily equate to best qualified.
See, e.g., Buck v. Dep't of the Treasury, EEOC Appeal No. 01A54621
(Mar. 24, 2006). A review of the considered candidates' applications
does not reveal that Complainant's qualifications for the position were
plainly superior to those of the selectees.
The Commission notes that an employer has discretion to choose among
equally qualified candidates, so long as the selection is not based on
unlawful criteria. In the absence of evidence of unlawful discrimination,
the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine,
450 U.S. at 259. Here, the weight of the evidence reveals that SO chose
the selectees because she believed they were better qualified and would
be better equipped to meet the Agency’s needs. Complainant failed to
rebut the Agency's reasons with any evidence that would undermine the
Agency's explanation. Thus, the Commission finds no evidence in the
record which would support a finding that the selections were tainted
by discriminatory animus or that the reasons articulated by the Agency
for its selections were mere pretext to hide unlawful discrimination.
Accordingly, the Commission finds that Complainant has failed to show
that she was discriminated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 21, 2012
Date
2
0120110913
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120110913